Wednesday, July 8, 2015

ALJs have new rules for whistleblower cases

On May 19, 2015, the Department of
Labor’s Office of Administrative Law Judges (OALJ) issued its final regulations updating its rules for the first time since 1983. The new
rules make a number of significant changes, but also fail to make
certain changes that would truly modernize OALJ practice.

Most notably, the rules fail to
provide for electronic filing. I was one of the commenters who had
suggested that OALJ’s new rules should provide for electronic
filing. The Office states that, “implementation of ECF is a
resource constrained policy decision.” In other words, the
Department of Labor has not paid for an electronic filing system yet,
so OALJ does not have one and cannot make one with its existing
resources. It remains hard to believe that the resources expended on
handling paper files is really cheaper than implementing an
electronic system. EEOC has a partially implemented “HE-CAPS”
system through which counsel can file documents by email. MSPB and
NLRB have their own electronic web-based filing systems. Federal
courts have a well-developed Case Management/Electronic Case Filing
system. Still, OALJ cannot use any of these, or develop its own. The
proposed regulation at 29 CFR § 18.30(b)(4) accommodates “special
circumstances” by allowing a judge to let “papers [] be filed,
signed, or verified by electronic means.” Hopefully, ALJs will
routinely allow email submissions to meet time limits, but it has not
happened yet. They still want documents filed by hardcopy.

For electronically stored
information (ESI), the new rules permit a requesting party to specify
a format for producing the information. 29 CFR § 18.61(b)(iii). If
no format is specified, then the producing party can provide them “in
a reasonably usable form or forms[.]” 29 CFR § 18.61(b)(v)(B).
However, “A party need not produce the same electronically stored
information in more than one form.” 29 CFR § 18.61(b)(v)(C). The
effect is to give requesters an incentive to specify the format they
want, or risk having their opponent pick a less desirable format. The
rules do not specifically require parties to meet and confer about
mutually agreeable formats. We had specifically cited to OALJ the
case of Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist.
LEXIS 16355 (S.D.N.Y.), holding that “Production of materials in
hard copy form does not preclude a party from receiving the same
information in electronic form.” The OALJ does not address this
case or explain why a party should be able to frustrate an opponent
by producing information in a less searchable format.

We also asked OALJ to state that the
rules should be applied to accomplish the remedial purposes of the
laws OALJ enforces. Since we submitted our comments in 2013, the
Supreme Court rooted its Lawson decision on the remedial
purpose of SOX. Lawson v. FMR LLC, 134 S. Ct. 1158 (2014). The
remedial purpose of the law was also the basis for upholding
Obamacare subsidies this year. It is unfortunate that OALJ could not
bring itself to say that the laws they enforce are remedial and their
job is to accomplish the purposes of these laws.

We had asked OALJ to make explicit
that summary decisions should be disfavored in whistleblower cases
and cited a series of law review articles. One noted that, “[T]he
increased inappropriate use of summary judgment” has “silently
curtail[ed] workers’ civil rights claims[.]” Ann C. McGinley,
Credulous Courts and the Tortured Trilogy: The Improper Use of
Summary Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev.
203, 205–06 (1993). OALJ responds that it “is neutral on the
question of whether summary decision as a procedural mechanism is
disproportionately adverse to the interests of whistleblower
complainants.” It adds that the ARB has given more specific
direction about summary judgment in whistleblower cases, including
one of our cases, Evans v. E.P.A.

OALJ responded that, “To the
extent such initiatives may be beneficial in certain cases, the
Department has concluded that the determination to adopt such
procedures is best left to the discretion of individual judges and/or
discovery plans developed by parties pursuant to paragraph (b)(3).”

OALJ also declined our strong
suggestion that they define a day as a whole day. Weobjected to the
proposed definition of “last day” at 29 CFR 18.32(a)(2). This
proposed rule states, “Unless a different time is set by a statute,
regulation, executive order, or judge’s order, the ‘last day’ ends
at 4:30 p.m. local time where the event is to occur.” I pointed out
how this rule would frustrate counsel who are used to getting briefs
done before midnight deadlines. OALJ responds that since they are not
generally authorizing electronic filing, filers need to send
documents in time to arrive on the last day. This policy adds
unnecessary expenses and risks to the cause of deciding cases on the
merits.

OALJ did accept one of our comments:
they have now deleted from 29 CFR § 18.24 any general deadline for
filing amicus briefs. Judges may decide on the filing of amicus
briefs on a case-by-case basis. This opens one door for public
interest groups to urge consideration of the remedial purposes of the
law.

Overall, this blog post gives
whistleblower advocates a “heads up” about the new rules, and
links to important sources of information about issues and
substantive law that might be useful to consider in handling
whistleblower cases at the OALJ.